The rumor mill is getting stronger that Justice Kennedy will hang it up this summer, but one has to wonder if the rumors are being floated by others to coax him, or the rumors represent true information based on private conversations that have been leaked. We’ll find out soon enough.

I’ve said before that I don’t think Kennedy is the weak link in the Heller majority. We know that Alito, Thomas, and Scalia are/were firmly on board. Given Justice Gorsuch’s judicial philosophy, we can assume he’s a likely solid vote. So it’s either Roberts or Kennedy who is the weak link, or possibly both. It’s quite possible that Kennedy is reluctant on the Second Amendment, and combined with Roberts’ tendencies toward minimalism, taking the Second Amendment further is an impossible proposition with the Court as it is now. Justice Kennedy retiring would definitely change things, unlike Justice Gorsuch’s ascention, which was about maintaining status quo.

14 Responses to “Rumors Getting Stronger on Kennedy”

In our current political scenario, I can’t imagine any SCOTUS Justice who was ever serious about their job planning on leaving the position until they were carried away on a stretcher or in a coffin. And guns would be only one of a panoply of issues I’d be thinking about, were I them.

For me the evidence is, who is widely thought to be the sources of what Trump thinks, including his SCOTUS appointments. I have no confidence in their constitutional acumen, or that if they had any, that it would trump their desire to install someone who would legislate their desired outcomes from the bench.

As I’ve said before, perhaps in different ways, the current fixation on installing SCOTUS Justices, by all camps, means everyone wants justices who will legislate from the bench.

A minor quibble: Trump won’t be picking any replacements himself. He doesn’t know enough about anything to have opinions. His shadow administration will be picking them, and he’ll be doing the nominating. My incomplete knowledge of who those shadows may be is what makes me worry, because I would bet even money they don’t give a crap about gun rights, other than that they are usually packed with the kit called “conservatism.”

I’d like to think they have some good dirt on him. But I’ve also heard all that it took was threatening a smear campaign against the Court if ACA were overturned. Good chance we would be disappointed by how little pressure it took to get Roberts to flip.

Trump just appointed his mentoree to the Court. He can say his, Justice A. Kennedy’s justicial legacy is now secure. And that he thinks Trump will appoint similar justices.

He is older. He just moved up the reunion of his court clerks from after the end of the next session to just before the end of the session. Before the end of session, when all those opinions are being published, and everyone is normally very busy. Normally retirements are announced at the end of the session.

He can go out on a high note now. If he waits until 2019, the Democrats will stop his successor using the “Biden / Scalia Rule.”

…The Federalist Society and Trump can replace him by going as far right as Trump dares, as there is no filibuster. Thank you, Schmucky Schumer!

Well another point is that Gorsuch can be the 4th vote to get Peruta cert. After that, Calipornia, NY, NJ and the other slave states will have more to worry about than fake “assault weapon” bans. If Kennedy bails this summer, a conservative replacement could be in place by Oct. BOOM! A “reciprocity” bill may not be needed.

4 votes for cert but that won’t win the case and to lose one with the Supremes is worse than not having it heard. We need that 5th vote and I don’t think replacing Kennedy will get it. Best evidence is that Roberts is the problem.

Scalia being replaced by Gorsuch doesn’t change the cert count (as Sebastian noted). “So it’s either Roberts or Kennedy who is the weak link, or possibly both. ”

Now, if it’s Roberts, he might not want to grant cert, but once cert is granted, he might vote in our favor. Or he was waiting for absolutely every circuit to rule before granting cert. He voted in the majority for both Heller and McDonald, after all.